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War powers debate

03/15/07 12:00AM By Vic Henningsen
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(HOST) As Congress debates resolutions removing troops from Iraq, commentator Vic Henningsen examines the historical tension over war powers.

(HENNINGSEN) The proposed wording of the Constitution's Article One gave Congress the power to "make" war, but during the Convention the framers modified it to "declaring" war. Perhaps they remembered the Continental Congress's ineffective handling of the Revolutionary War. By implication this left conduct of war - that is, directing operations - to the president. During the ratification debate, Alexander Hamilton made this explicit in Federalist, No. 74, writing, "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." His opponents argued that this made presidential war powers too strong. The debate has raged ever since.

Every military conflict in our history raised tensions between the legislative and executive branches about their respective powers in time of war. In general, Congress has respected the president's fundamental right to conduct war while seeking to exercise significant influence over that conduct. During the Civil War, for example, Congress's Joint Committee on the Conduct of the War critiqued battles, interrogated generals about their political beliefs, reviewed military contracts and the quality of medical care, and even investigated the First Lady's alleged Confederate sympathies. President Lincoln called the committee "an instrument of agitation." Committee chair Ben Wade responded, "Mr. President, you are murdering your country by inches."

Lincoln's successful conduct of the war and the overtly political aims of much of the Joint Committee's work damaged the credibility of congressional efforts to influence presidential war powers. But the debate never died down.

It reached new heights during Vietnam as the country witnessed the rise of the so-called "imperial presidency." In November 1973, Congress overrode President Nixon's veto to pass the War Powers Act, imposing a sixty-day limit on presidential commitment of troops to overseas conflicts without a follow-up authorization from Congress. Believing the Act unconstitutional because it would tie their hands, Nixon and his successors ignored it. And as we know, Congress has voted such authorizations, most recently about Iraq in 2003.

But the tension continues. Congress could end the Iraq War by withholding appropriations. But that would require significant bi-partisan support, which is unlikely, either in the House, where Democrats fought among themselves over how strong a withdrawal bill to push, or the Senate, where the slim Democratic majority needed Republican votes just to discuss a resolution that has little chance of passing. And of course, the President has a veto, which requires a two-thirds majority to override.

Americans who sent a strong message about the war by changing Congressional majorities last November are learning some hard facts about separation of powers. Congress can influence the conduct of a war, but can't control it directly - nor was it meant to. As Alexander Hamilton foresaw, when the conduct of war becomes a clash between a legislative branch representing many different and often conflicting agendas and an executive branch with only one clear aim, the executive usually prevails.

Vic Henningsen is a teacher and historian.
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